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January 2015

23 January 2015

Last August, the Alberta Court of Appeal released its decision in the reasonably high-profile extradition case of United States v. Muhammad 'Isa. 'Isa, an Iraqi-Canadian who lived in Edmonton, was wanted in the US on charges of facilitating terrorism. When the US government agreed not to impose the death penalty and to try him before a normal civilian court -- that is, not a military tribunal of some sort -- the government of Canada agreed to extradite him.

'Isa challenged his extradition on a number of grounds, including that since he faced a sentence of life imprisonment without the possibility of parole, extraditing him would "shock the conscience of Canadians" and thus breach s. 7 of the Charter. The Court of Appeal disagreed, dispensing with this argument in eight paragraphs, essentially on the basis that such a sentence was not "shocking" and that disparities in sentencing did not amount to a human rights violation. Many expected that the case might be granted leave by the Supreme Court of Canada, given that the Quebec Court of Appeal had expressed the opposite view in an earlier case (here). However, leave was denied.

There is much to be said about this case, but rather than say it myself I will commend you, dear reader, to an excellent blog post on this case by my friend and colleague Professor Joanna Harrington of the University of Alberta's Faculty of Law. She discusses this decision within the larger context of international state practice on the issue of "life no parole," which is a human rights issue.

I will add only these two related points: 1) you would not know, from reading this case or indeed most Canadian extradition jurisprudence, that there even was any international law, state practice or differences of judicial opinion on issues like these. You would not know, for example, that many countries view the practice of imposing a life sentence without the possibility of parole as barbaric. This is a view, one might argue, that Canadians share, since it is not available under our law and would certainly be struck down under s. 12 of the Charter were it brought in.

The default view, one seemingly urged on the courts by the Crown, is that international practice is not relevant. That is convenient, given that (as Prof. Harrington lays out in detail) there is widely divergent law on this precise topic out there, but as in this case our courts are most often either not exposed to it or encouraged to overlook it.*

Why does that matter? That's point (2): because this is an international human rights law issue, yet international human rights law gets nearly no attention in Canadian extradition case law. You would think, reading these cases, that Canada had no international human rights law obligations regarding extradition. Yet we do, and in fact the UN's Human Rights Committee has found on more than one occasion that Canada breached those obligations.

Our extradition cases are full of language about the importance of Canada fulfilling its extradition treaty obligations, in order to assist our partners in the suppression of transnational crime, to be a good global citizen, etc. All of which is true and good -- but the omission of our international human rights law obligations from the equation makes this area of law rather lopsided.

UPDATE (27 Jan 2015): above I noted that "life without parole" is not available in our law and expressed the view that it would not survive a Charter challenge. On the first point, perhaps I spoke too generally and too soon. Recent amendments to our Criminal Code installed sections which provide for consecutive life sentences without parole eligibility for an extended period, which can mean "life without parole" in practical terms. For example, the perpetrator of the horrific Moncton, NB police shootings, Justin Bourque, received 3 consecutive life sentences for first-degree murder, which means his parole eligibility doesn't kick in for 75 years -- essentially life without parole.

Also, the federal government has just announced plans to bring in a "life means life" law for certain sentences (coverage here). This could definitely be subject to a Charter challenge, and as a close read of Prof. Harrington's comment on 'Isa will reveal, could cause extradition problems, as a number of states will not extradite individuals to Canada to face such a sentence.

* A notable exception is the recent decision of the Ontario Court of Appeal in France v. Diab, which surveyed a fair amount of international material regarding state practice. Diab himself was represented by lawyers well-versed in international human rights law.